9911796707
TMI Blog2004 (5) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... of these seized records. The first such extension was made up to February 28, 2003. In the month of February, 2004, a notice was served upon the petitioner asking him to show cause as to why the records should not be retained till February 28, 2005, on the ground that the records were necessary for investigation/assessment/appeal/revision and review. By an order dated February 26, 2004, the period of retention of record was extended till February 28, 2005. Such order is illegal, erroneous and without jurisdiction. The learned lawyer for the petitioner relying on the decision reported in Ram Kumar Roshanlal v. C.T.O. [1992] 87 STC 465 (WBTT); [1990] 23 STA 244, Banwarilal Agarwala v. State of West Bengal [1992] 87 STC 390 (WBTT); [1993] 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not given an opportunity of being heard. The order of the retention, therefore, according to the learned State representative is sustainable under law. The proviso (b) of section 66 states "any person appointed under subsection (1) of section 3 to assist the Commissioner shall not retain any of the accounts, registers or documents, including computerised or electronics accounts maintained on any computers or electronic media, seized by him under this section for a period exceeding one year from the date of the seizure unless he states the reason in writing therefor and obtains sanction of the Commissioner in writing in respect thereof". Hence, the concerned officer have to obtain sanction of the Commissioner in writing statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof orks v. M.L. Acharya, I.C. Taxes [1995] 98 STC 155 it was held by this Tribunal that the retention order had to be communicated before the date of expiry of the period of one year. Such retention order would be invalid, if it was communicated even shortly after the expiry of the period of one year. Admittedly, the reasons stated by the concerned officer to obtain sanction for retention of the documents beyond the period of one year was also never communicated to the petitioner though in a case reported in Ram Kumar Roshanlal v. C.T.O. [1992] 87 STC 465 (WBTT); [1990] 23 STA 244, it was held that the order for retention would be invalid if such reasons for re extension of the period of retention were not communicated to the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamining the said notice, we find that the Learned Additional Commissioner directed the petitioner to appear on February 26, 2004 and to show cause as to why the seized records shall not be retained beyond February 28, 2004. The grounds for retention stated in the notice is "for the purpose of investigation/assessment/appeal/ revision and review by the appropriate authority". Thus, it is not clear from this notice for which purpose specifically the documents are required to be retained beyond the period of one year. Moreover, the brief reasons given in the order dated February 26, 2004 on the basis of this notice, none of the purposes was mentioned. The actual reason for the order of retention as stated in the order is that the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority by the learned C.T.O. The ground in the show cause notice has not been taken into considerations in the order for sanction passed by the sanctioning authority. Therefore, the seizure is illegal in view of the principles laid down in Ram Kumar Roshanlal v. C.T.O. [1992] 87 STC 465 (WBTT); [1990] 23 STA 244. The learned State Representative submits that the extension was granted by the learned Additional Commissioner since the investigation was not completed though it was not clearly discussed in the order of the learned Additional Commissioner, still in the serial No. 2 of the order dated February 27, 2004, the brief reason for according sanction for retention of the books of account had been clearly noted. Therefore, the seizure is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o justification at all, since it seeks to approve what is arbitrary and unreasonable. The scheme of section 14(3A) of the BFST Act, 1941, in our opinion, requires by necessary implication that the reasons stated in writing for obtaining sanction shall be communicated to the person from whom the documents were seized. Otherwise, the requirement of stating the reasons in writing becomes pointless. The ratio of Commissioner of Income-tax v. Oriental Rubber Works [1984] 145 ITR 477 (SC) is that such reasons must be communicated expeditiously and non communication will vitiate the order passed. We are of the view that this ratio is equally applicable to a case under section 14(3A), proviso (b) of the BFST Act, 1941." In view of the findi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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